of Management Kanya Junior High School Bal Vidya Mandir, Etah, U.P. Vs. Sachiv,
U.P. Basic Shiksha Parishad Allahabad, U.P. & Othe  Insc 510 (21
B. Sinha & Dalveer Bhandari Dalveer Bhandari, J.
appeal is directed against the judgment and order dated 10.4.2003 passed by the
High Court of Judicature at Allahabad in
Civil Writ Petition No. 15255 of 2003.
no. 3 Smt. Santosh Upadhyay was working as an Assistant Teacher in the Kanya
Junior High School Bal Vidya Mandir, Etah. A letter dated 8.9.2001 in the form
of a show-cause-notice was sent to respondent no. 3 by the Principal of the
school directing her to stop her acts of indiscipline. The letter dated
8.9.2001 reads as under:
Institution) G. Jr. High School Bal Vidya Mandir, Etah (Permanently Recognized from
Government for the Class from Nursery to VIIIth) From : Principal
Upadhyay, Asstt. Teacher, G. Jr. H. School, Bal Vidya
Mandir, Etah Dated: 8.9.2001 Subject: Regarding indiscipline etc.
You are not complying with the following instructions despite number of oral as
well as written orders:-
Refusal to sign
on the Order Register and on other information etc.
the duties of your charge.
Use of indecent
language and shouting for giving reply.
related words to spoil the atmosphere.
other teachers and provoking them to neglect their duties.
in the development of school and increasing the number of students.
Threats to me
(Principal) for dire consequences, in my office and also giving threats on my
residential telephone through other unsocial elements.
hereby give you this last warning to improve your attitude and work as a model
teacher. Please note that earlier also your services had been terminated
because of such type of your attitude and you had been reinstated in the
service after your apologizing and you had assured that you will never repeat
such mistakes and indiscipline in future.
being the Principal of School, I advise you to stop these acts of indiscipline
and work as a model teacher.
faithfully, Sd/- (Smt. Kusum Sharma) Principal G. Jr. High School, Bal Vidya Mandir,
Etah Copy forwarded to following for information and necessary action:-
Manager, G. Jr. H. School, Bal Vidya Mandir, Etah
Education Officer, Etah Sd/- (Smt. Kusum Sharma) Principal G. Jr. High School,
Bal Vidya Mandir, Etah" The appellant did not receive any satisfactory
reply from respondent no. and on 24.9.2001 a suspension order was passed. The
suspension order dated 24.9.2001 reads as under:
Jr. High School Bal Vidya Mandir, Etah (Permanently Recognized from Government
for the Class from Nursery to VIIIth) From : Manager
Santosh Upadhyaya, Asstt. Teacher, G. Jr. H. School, Bal Vidya Mandir, Etah Dated: 24.9.2001 O R D E R
Consequent upon not receiving the satisfactory reply for the following charges,
Smt. Santosh Upadhyaya, A.T., Girls Junior High School, Bal Vidya Mandir, Etah is placed
under suspension with immediate effect. The charge-sheet will be issued after
the detailed enquiry, within two week's period.
Refusal to sign
on the Order Register and on other information etc.
the duties of your charge.
Use of indecent
language and shouting for giving reply.
related words to spoil the atmosphere.
other teachers and provoking them to neglect their duties.
in the development of school and increasing the number of students.
Threats to the
Principal for dire consequences and also giving threats on her residential
telephone through other unsocial elements.
the period of suspension, you will be entitled to get Subsistence Allowance
according to the Rule 53 of Financial Hand Book Part 2 (Part 2 to 4). During
the period of suspension, you will remain attached with S.K.S. Girls Junior
High School, Etah.
(Dev Rishi Jain) G. Jr. High School, Bal Vidya Mandir, Etah Endst. No. 1-5/2001-2002 Dated:
24.9.2001 Copy forwarded to following for information and necessary action:-
Smt. Santosh Upadhyaya,
A.T., G. Jr. High School, Bal Vidya Mandir, Etah.
Education Officer, Etah for information.
Finance & Accounts Basic Education, Etah
Sharma, Principal, Bal Vidya Mandir, Etah.
(Dev Rishi Jain) G. Jr. H. School, Bal Vidya Mandir, Etah.
24.9.2001" On 17.10.2001, the Manager, G.
J. High School, Bal Vidya Mandir, Etah received a letter from the District
Basic Education Officer, Etah indicating that for a minority institution there
is no requirement of prior approval for imposing penalty on Assistant Teachers
from the District Basic Education Officer. The letter dated 17.10.2001 reads as
of the District Basic Education Officer, Etah No. 3381-82 Dated: 17.10.2001 The
Manager, G. J. High School, Bal Vidya Mandir, Etah.
Govt. Order No. 1091/15.6.95 dated 14th July, 1995 in the matters of penalty to
the Assistant Teachers and Principals of Recognized Junior High School, there
is no requirement of prior approval from the District Basic Education Officer,
therefore, in view of these provisions, the order No. B.S. /Sus./3196/2001-2002
dated 10.10.2001 issued by the undersigned regarding re- instatement of Smt. Santosh
Upadhyaya, Assistant Teacher (Under Suspension) is hereby cancelled, and it is
decided that no interference will be made in the enquiry proceedings till the
final disposal by Manager.
School has been recognized as Minority Institution and as per departmental
rules, I have no right to interfere in its matters and as per Govt. orders, the
decision taken by the Manager shall be acceptable to all.
Singh Rajput) District Basic Education Officer, Etah.
No. /2001-2002 even date
Copy to Smt. Santosh Upadhyaya, Assistant Teacher (Under Suspension), G. J. High School, Bal Vidya Mandir, Etah for
Singh Rajput) District Basic Education Officer, Etah." The appellant
institution, namely Kanya Junior High School Bal Vidya Mandir, was established
and administered by the Jain community which has been recognized as a minority
community. In this School education is imparted up from Nursery to standard
VIII. An enquiry was conducted and after receiving the enquiry report from the
Enquiry Officer, meeting of the Managing Committee was called on 9.11.2001
which was attended by all the members of the Managing Committee. The enquiry
report and reply to the show cause notice were considered. The charges levelled
against respondent no. 3 were unanimously proved. In the interest of the
institution and its good reputation, respondent no. 3 was removed from the
service of the school. The order of termination dated 10.11.2001 reads as
Manager, G. J. High School, Bal Vidya Mandir, Etah.
Santosh Upadhyaya, Assistant Teacher (Under Suspension) G. J. High School, Bal Vidya Mandir, Etah.
18-20/2001-2002 Dated: 10.11.2001 Subject: Order of Termination from service.
After the submission of the Enquiry Report by the Enquiry Officer regarding
suspension of Smt. Santosh Upadhyaya, meeting of Managing Committee was called
on 9.11.2001 and formal resolution was passed as per rules and all the members
of Managing Committee and Principal attended this meeting. The Enquiry Report
and explanation (Show Cause Notice) were considered carefully and thereafter it
has been decided unanimously that the charges levelled against Smt. Santosh Upadhayaya,
on the basis of statements and evidence, have been found fully proved. These
cannot be considered as wrong in any manner. It would be in the interest of
school and its reputation that Smt. Upadhyaya be removed from the services of
this School. Therefore, notice of termination from service may be sent to her
and competent officer may also be informed on this subject.
the report of District Basic Education Officer regarding your in- disciplinary
activities in the School, your one annual increment had been stopped.
annual increment had been stopped w.e.f. 1st January, 2001 and the above said Basic Education
Officer had been transferred from this District in June, 2001. During this
period of 6 months, you never made any application regarding stopping of this
annual increment, reasons of which are best known to you.
shows that you were very well aware that the annual increment has been stopped
on your non-complying with the department rules and you had no sufficient
evidence against these charges, therefore, above said charges are found proved
A charge sheet
had been issued to you by the undersigned, vide letter No. 7-3- 2001/2002 dt.
1.10.2001 regarding your working style against the interests of school, but you
did not submit any evidence with your reply to the said charge sheet. It is
thus clear that you have admitted the charge Nos. 6, 7, 8, 9 because you have
not submitted any evidence regarding these charges.
Officer, vide his letter dated 10.10.2001 had issued to you the evidence
related to the charge, but instead of producing any evidence or document in
this regard, you only made allegations against the Principal, other teachers
and the management. In the show cause notice vide letter dated 26.9.2001, you
had been charged with the charge of character assassination of undersigned
Manager, for which you have neither submitted any evidence nor your
as the question of your orders of reinstatement issued by the District Basic
Education Officer vide his letter dated 10.10.2001 is concerned, the same has
been considered ex-parte and beyond his jurisdiction, therefore, the same have
been cancelled vide his letter No. 3381-82 dated 17.10.2001.
second decision, it has been admitted by the District Basic Education Officer
that this School is of 'Minority Community' and he should have not interfered
in its matter. As far as your statement, that it is not a Minority Community's
school, is concerned, it is not within your competency, you have worked as a Teacher
and it is not within your competency to challenge the rules, regulations and
government orders related to this School. It is a matter of gross in-
discipline on your part. The allegations made by you regarding fees etc. are
baseless and beyond the facts. It has been found fully proved that you have
misappropriated the funds of students fee and used the same for personal
this manner, you have failed to submit any evidence and documents with regard
to charges levelled against you in the show cause notice on the basis of that
your matter should have been reviewed.
absence of same, the reply to show cause notice received from you within the
stipulated time, is not satisfactory and in these circumstances, there is no
justification to keep you in service of this School. Consequent upon your
failing to submit an appropriate evidence and document before the undersigned,
despite the sufficient opportunities to explain, your services are terminated
with immediate effect.
faithfully, Sd/- (Dev Rishi Jain) Manager G. Jr. High
School, Bal Vidya Mandir,
to: - For information
Education Officer, Etah
Accounts Officer Basic Education, Etah Sd/- (Dev Rishi Jain) Manager G. Jr.
High School, Bal Vidya Mandir, Etah." Respondent no. 3 challenged
the order of termination dated 10.11.2001 before the High Court of Judicature
at Allahabad by filing a writ petition, which was decided by the learned Single
Judge on 7.12.2001.
preliminary objection was raised on behalf of the appellant that in view of the
provisions of Rule 16 of the Uttar Pradesh Recognized Basic Schools (Junior
High Schools) (Recruitment and Conditions of Services of Teacher) Rules, 1978,
the provisions of Rule 16 are applicable to the teachers and Headmaster of the
institution run by Basic Shiksha Parishad and according to 1978 Rules order of
termination, dismissal or removal is an appealable order.
learned Single Judge accepted the preliminary objection regarding availability
of alternate remedy and declined to interfere with the termination order dated
10.11.2001 and dismissed the Writ Petition.
no. 3, aggrieved by the order of the learned Single Judge, preferred a Special
Appeal before a Division Bench of the High Court of Judicature at Allahabad. It was incorporated in the said
order of the Division Bench that respondent no. 3's services were terminated
after holding an enquiry by the Managing Committee by an order dated
10.11.2001. The grievance of respondent no. 3 was that the order passed by the
Managing Committee was without taking approval from the District Basic
Education Officer, therefore, the order of termination dated 10.11.2001 is a
nullity and that the learned Single Judge had committed a serious error in dismissing
the writ petition.
learned counsel appearing for the appellant institution specifically submitted
before the Single Judge that the appellant is a minority institution being run
by the Jain Community and has been recognized as such. Therefore, there was no
requirement for obtaining prior approval of the District Basic Education
Officer before terminating the services of respondent no. 3. The counsel
appearing for the appellant had drawn the attention of the learned Single Judge
about the order which was passed way back as on 25.8.1976 by the concerned
authorities that the appellant institution was a minority institution. The
order dated 25.8.1976 reads as follows:
of the District Inspector of School, Etah Order No. B.S.P./11264/76-77 Dt. 25.8.1976
O R D E R On the basis of recommendations dated 27.7.1976, District Basic
Education Officer Girls Junior High School, Bal Vidya Mandir, Etah is declared
a Minority Institution under Regulation 11 for the Recognized Basic School
(Recruitment and Conditions of Service of Teacher's and other Conditions) Rule,
1975, notified on 20.5.1975 because this Institution is being established and
managed by minority category mentioned under Article 30(1) of the Constitution.
(Ram Prakash Singh) District Inspector of School, Etah No. B.E.P.//11264/76-77
even date Copy forwarded to following for information & necessary action
Education Officer, Etah With reference to his office letter No. CA-
4404/12/B.R.D. Minority/76-77 dated. 27.7.76.
Manager Girls Junior
High School, Bal Vidya
Dy. Director of
Education, Region-II, Agra.
Inspector of Girls School Region- II, Agra.
Education, U.P. Peerpur House, Tilak Marg, Lucknow.
(Ram Prakash Singh) District Inspector of School, Etah" Rule 11 of the Uttar Pradesh Recognized Basic School (Recruitment and Conditions of
Service of Teachers and Other Conditions) Rules, 1975 reads as under:
"Dismissal and Removal of
order dismissing, removing or terminating the services of a teacher or other
employee of a recognized school shall be passed save with the prior approval in
writing of the Basic Shiksha Adhikari:
that in case of recognized schools established and administered by minority referred
to in clause (1) of Article 30 of the Constitution, such an order shall not
require the approval of the Basic Shiksha Adhikari but shall be reported to
him." It may be pertinent to mention that a letter dated 7.3.2003 sent by
the District Inspector of School, Etah to the Basic Eduction Officer, Etah
regarding verification of the Girls Junior High School Bal Vidya Mandir, Etah
Minority Institution is as under:
District Inspector of School, Etah.
Basic Education Officer, Etah.
No. /2002-03 Dated 7.3.2003 Sub: In regard to verification of Girls Junior High
School Bal Vidya Mandir, Etah Minority Institution.
In the above matter kindly peruse your office letter B.S. 7493/2002-03 dated
regard by this office 2.9.2002, the position is made clear, where as the then
District Inspector of School, Etah in accordance with the then Rules was
competent authority to declare the aforementioned School as Minority
Institution or not? It is informed in this regard, as per para 3 under heading
"Minority Institution" of Madhyan 10, photo copy of the same is
enclosed the then District Inspector of School was Competent Authority to
decide the Minority Institution.
be aware accordingly and take necessary action.
(K. N. Kanaujiya) District Inspector of School, Etah.
As above." According to the appellant institution, it is clearly mentioned
that the District Basic Education Officer was competent to decide regarding
minority status of the institution. The Division Bench of the Allahabad High
Court in Special Appeal 1207/2001, after hearing the parties, observed as
institution has been accorded the status of a minority institution thus no
prior approval of the District Basic Education Officer for terminating the
services of a teacher in a minority institution is required to be taken in view
of the proviso to Rule 15 of the 1978 Rules." The appeal filed by
respondent no. 3 was dismissed by an order dated 13.11.2002.
subsequent proceedings in Writ Petition No. 1525 of 2003, the learned Single
Judge of the Allahabad High Court on 10.4.03, while altogether ignoring the
said judgment of the Division Bench of the same Court in the Special Appeal No.
1207 of 2001, (by which he was bound), had observed in the judgment that in a
Special Appeal the Court had not considered the question regarding the minority
status of the institution. This observation of the learned Single Judge is
approach adopted by the learned Single Judge in this case is against the
settled principle of law. Law is consistent and clear that the Single Judge of
the High Court is bound by the decision of the Division Bench.
support of the view taken by the Division Bench adequate material exists. We deem
it proper to recapitulate references to the decided cases and other relevant
Government of Madhya Pradesh, by a notification dated 29.5.2001, declared the
Jain community in the State of Madhya Pradesh
as a minority community.
Founding Fathers of the Constitution had unequivocally recognized the Jains as
a minority community as is evident from the proceedings of the Constituent
Assembly. While keeping in view that the Jains are a minority community, a
representative of the Jain community was taken in the Minority Advisory
Committee of the Constituent Assembly.
On 3rd September, 1949, while addressing a public meeting
at Allahabad, the first Prime Minister of India,
Shri Jawahar Lal Nehru said. We quote a few lines from the said speech "No
doubt India has a vast majority of Hindus, but
they could not forget the fact that there were also minorities Muslims, Parsis,
Christians, Sikhs and Jains. If India was understood as a Hindu Rashtra, it meant that the minorities were
not cent percent citizens of this country." The said speech was reported
in the English daily newspaper 'The Statesman' dated 5.9.1949.
On 31st January, 1950, the PPS to the then Prime Minister
of India sent a letter to the Jain
Deputation on behalf of the then Prime Minister, which reads as under:
reference to the deputation of certain representatives of the Jains, who met
the Prime Minister on the 25th January, 1950, I am desired to say that there is
no cause whatever for the Jains to have any apprehensions regarding the future
of their religion and community. Your deputation drew attention to Article 25,
explanation II of the Constitution. This explanation only lays down a rule of
construction for the limited purpose of the provision in the article and as you
will notice, it mentions not only of Jains but also Buddhists and the Sikhs. It
is clear therefore, there is no reason for thinking that Jains are considered
as Hindus. It is true that Jains in some ways closely linked to Hindus and have
many customs in common, but there can be no doubt that they are a distinct
religious community and constitution does not in any way affect this well
A. V. Pai
Principal Private Secretary to the Prime Minister" Dr. S. Radhakrishnan,
the former President of India, in his celebrated book "Indian Philosophy Vol
I" mentioned as under:
Bhagawat Purana endorses the view that Rishbhadeva was the founder of Jainism.
There is evidence to show that so far back as the first century B.C. there were
people who were worshipping Rishabhadeva, the first Tirthankara.
is no doubt that Jainism prevailed even before Vardhamana Mahaveera or Parsvanatha.
mentions the names of three Tirthankaras-Rishab, Ajitnath & Aristanemi."
A well known German Oriental scholar, Dr. Hermann Jacob mentioned before the
3rd International Congress for the History of Religions as under:
conclusion let me assert my conviction that Jainism is an original system,
quite distinct and independent from all others and that therefore it is of
great importance for the study of philosophical thought and religious life in
ancient India." (This was mentioned in Vol.
2, p. 66 Oxford.) Pt. Jawahar Lal Nehru, in his celebrated book "Discovery
of India", mentioned as under:
and Jainism were certainly not Hinduism or even the Vedic Dharma. Yet they
arose in India and were integral parts of Indian
life, culture and philosophy. A Buddhist or Jain, in India, is a hundred per cent product of
Indian thought and culture, yet neither is a Hindu by faith.
therefore, entirely misleading to refer to Indian culture as Hindu
culture." As Dr. Jyoti Prasad Jain, an eminent Jain scholar mentioned in
his treatise "Jainism The Oldest Living Religion":
fact, there is whatsoever no tangible evidence to show that Jainism branched
off from the Vedic religion or from any of its later development, at such and
such time, nor there is any marked similarity between the fundamental doctrines
and essential features of the two systems, which might favour that possibility.
Jainism with its perfectly non-violent-creed, animistic belief, subtle and
peculiar karma theory, its rejection of a creator and the creation theory, and
the like, is not only quite an original system but is also absolutely
independent of all other systems. In its origin, it is not only non-Aryan and
pre-Aryan, in the sense that these terms are now generally understood, but it
is also primitive and absolutely indigenous." A well known book on Jainism
written by Madam M. R. Guseva, [Candidate of Historical Sciences at the
Institute of Ethnography of the Academy of Sciences, USSR and Jawaharlal Nehru
Prize Winner (1973)], revealed the historical and ethnographic roots of
Jainism, tracing the development of the Jain community since ancient times
evaluating the Jain contribution to Indian literature and art. In particular
the book makes a point that Jainism has such substantially distinguishing
features that they do not afford any possibility of regarding Jainism as an
offshoot of Brahmanism.
the hotly debated issues in the United Nations was the question of defining
what constitutes a 'minority'? Besides considering many proposed definitions,
the UN had two authoritative definitions before it. The PCIJ (in an advisory
opinion of July 31,
1930) had defined a
community in the Graeco-Bulgarian Communities case as:
tradition, the 'community' is a group of persons living in a given country of
locality, having a race, religion, language and traditions of their own and
united by this identity of race, religion, language and traditions, in a
settlement of solidarity, with a view to preserving their traditions,
maintaining their form of worship, ensuring the instruction and upbringing of
their children in accordance with the spirit and traditions of their race and
rendering mutual assistance to each other." The Government of Karnataka by
a circular dated 12.6.1996 considered Jains belonging to backward classes.
circular reads as under:
OF KARNATAKA No. SWD 84 BCA 96 Karnataka Government Secretariat-2 Multistoreyed
Building Bangalore, dated 12-06-1996
CIRCULAR Sub:- Regarding the issue of certificate of Backward classes to the
candidates belonging to Jain Digambaras.
list of Backward Class Communities published in Government Order No. SWD 150
BCA 94 dated 17-9-94, the Jain (Digambara) Community has
been included in category III (b). After considering the representations
received from the various Associations of Jain Community and also the
clarifications sought for by some of the Dy.
and Tahsildars in this regards, it is directed that the candidates belonging to
Jain (Digambara) Community become eligible for reservation under Category III
(b) only after production of reliable documents by them. The concerned
candidate should prove, either through documentary evidence or through witness
that he, his father or their ancestors belong to Jain (Digambara) Community. In
cases where the Jain (Digambara) has not been clearly mentioned in the
documents, the officer authorized to issue such certificates or the inquiring
officer should hold local enquiry and only if he is satisfied as to the
correctness of the claims of the candidates during course of such enquiry, that
he should issue certificates. He should, however, draw up a clear and detailed
proceedings of his enquiry before issue of the Certificate. Disciplinary action
will be taken against the Officers who issue Caste certificates/Inquiry
Certificates in violation of rules of reservations.
(B. S. Rukmini) Under Secretary to Govt.
Welfare Department" In Re: Kerala Education Bill, 1957 reported in AIR
1958 SC 956, the Apex
Court accepted the
literal meaning of word "minority" to mean numerically less than 50%.
Encyclopedia of World Religions by G. T. Bettany mentioned the Jain religion as
independent of the other religions. According to the said Encyclopedia, Jainism
is co- equal with, if not slightly older than, Buddhism, and took its rise in
the same development of Brahman asceticism and reaction from Brahmanical
Britannica defines the Jain religion in the following words:
a religion and philosophy in India, founded in about the 6th century BC by Vardhmana
Mahavira-the 24th of the Jinas (Conquerors), or great religious figures on
whose example the religion is centered in protest against the orthodox Vedic
(early Hindu ritualistic cult of the period. Jainism, which does not espouse
belief in a creator god, has as its ethical core the doctrine of ahimsa, or non
injury to all living creatures, and as its religious ideal the perfection of
man's nature, to be achieved predominantly through the monastic and ascetic
life." Dr. Radhakrishnan, who edited the 6th Volume of The Cultural Heritage
of India, mentioned as under:
Jains claim a great antiquity for their religion.
earliest prophet was Rishabhdeva. Who is mentioned even in the Vishnu and Bhagawat
Puranas as belonging to a very remote past. In the earliest Brahmanic literature
are found traces of the existence of a religious Order, which ranged itself
strongly against the authority of the Vedas and the institution of animal
sacrifice. According to the Jain tradition, at the time of the Mahabharata war,
this Order was led by Neminatha, who is said to have belonged to the same Yadava
family as Krisna and who is recognized as the twenty-second Tirthankara. The
Order gathered particular strength during the eighth century B.C. under Parsvanatha
the twenty-third Tirthankaran, who was born at Varanasi. This order we may call the sramana sangha (as distinct
from the Vedic Order), which later became divided into the Jain and the
Buddhist Orders under Mahaveera and the Buddha, respectively." According
to Dr. Raj Bali Pandey's book "Hindu Dharam Kosh" Jainism is
described as a distinct religious order existing in Indian polity since times
of great antiquity and was opposed to ritualistic cult of Vedic philosophy.
According to him, Jainism is existing in India since at least 700 B.C.
to the learned Single Judge, minority status could be granted only by the U. P.
Basic Shiksha Parishad and since it was not granted to the appellant
institution by the said Parishad, the appellant institution could not terminate
the services of respondent no. 3 without prior permission from the District
Basic Education Officer. The appellant aggrieved by this order preferred this
appeal before this Court.
Court, on 11.7.2003, while issuing notice directed that the status quo as on
that date shall be maintained until further order. On 5.12.2003 this Court,
while granting leave, directed the parties to continue to maintain the status
this appeal the appellant raised a substantial question of law. The appellant
raised the plea that in view of the judgment of the Division Bench whether it
was open to the learned Single Judge of the High Court to take a contrary view
by its judgment dated 10.4.2003. The Division Bench observed as under:
heard the learned counsel for the parties we find that it is not in dispute
that the appellant writ petitioner was working as a teacher in recognized basic
school. The institution has been accorded the status of minority institution
thus no prior approval of the District Basic Education Officer for terminating
the services of the teacher in a minority institution is required to be taken
in view of the provision Rule 15 of the 1978 Rule." In view of the said
clear findings of the Division Bench of the same High Court, the learned Single
Judge of the same High Court could not take a contrary view. The learned Single
Judge was bound by the judgment of the Division Bench of the said High Court.
not in dispute that the institution established and administered by the Jain
Community which is recognized as minority by the State Government from the date
of its establishment continuously for 25 years, whether the said benefit could
be nullified by the learned Single Judge who had ignored the specific finding
of the Division Bench. The appellant also raised a question that respondent no.
3, who herself was working as a teacher after obtaining the benefit of the
minority institution, could be permitted to take a plea that it is not a
minority institution and such an act of respondent no. 3 would be against the principles
of Estoppel and Acquiescence. It is also mentioned in the appeal that
respondent no. 3 was appointed as a teacher in the appellant institution in
1982 on the basis that the institution was a minority institution and that her
appointment was not approved by the District Basic Education Officer since it
was not required for the minority institution. The appellant also submitted
that respondent no. 3 could not be permitted to contend that approval of the
Basic Education Officer is required for her services to be terminated. The
appellant also incorporated that whether the appellant institution and other
institutions duly recognized as minority institutions by the same authority
namely the District Inspector of School, Etah by letter dated 25.8.1976 and
debarring the status of the appellant institution as not minority institution
on the ground that the District Inspector of School is not a competent
authority to grant recognition whereas to allow to other institutions to
continue as minority institutions recognized by the same authority would not be
discriminatory under Article 14 of the Constitution. It is also mentioned in
the appeal that the learned Single Judge committed a serious error of law in
relying on the Circular dated 20.4.1971 which could not be made applicable to
the schools governed by the provisions of the U.P. Basic Education Act 1972.
appellant submitted that on the relevant date a Recognition Committee was
constituted for the convenience of the local people for recognition of Junior
High Schools, of which the Director of Inspector of School (for short D.I.O.S.)
was appointed as Chairman. The appellant institution applied for recognition as
minority institution with the Basic Education Officer. Since it also related to
the recognition of institution, the Basic Education Officer forwarded the
application to D.I.O.S. The D.I.O.S. recognized the institution as minority
institution. Now, that status cannot be taken away by the learned Single Judge
of the High Court, who chose to ignore the findings of the Division Bench of
the same High Court.
reply to the appeal, a separate counter affidavit was filed on behalf of
respondent nos. 1 and 2 by one Dr. R. K. Dubey, Zilla Basic Siksha Adhikari, Etah,
in which a preliminary objection has been taken that this appeal is not
maintainable because under Chapter VIII Rule 5 read with Chapter IX Rule 10 of
the Allahabad High Court Rules, the writ petitioner had to exhaust the remedy
of a Special Appeal before the Division Bench and without exhausting the remedy
of Special Appeal, this appeal before this Court cannot be entertained. It was
also submitted in the counter affidavit that a management claiming to be a
minority institution, had to apply for the grant of such status. Respondent
nos. 1 & 2 had denied that any application had been filed to treat the
appellant as a minority institution. In the counter affidavit it is mentioned
that the U.P. Basic Education Act, 1972 and the Rules made thereunder
specifically provided for making an application for according the status of
minority institution. It is only after the competent authority is satisfied
that an institution fulfils the tests for according the status of minority
institution that an order in that behalf is passed. It is also mentioned in the
reply affidavit that the issue of minority institution had to be decided by the
U.P. Basic Shiksha Parishad and not by the Directorate of Inspector of Schools.
also incorporated in the counter affidavit that the Directorate of Inspector of
Schools was not an authority constituted under the U.P. Basic Education Act,
1972, but was an authority under the U.P. Intermediate Education Act and was
not competent to recognize a Junior High School or the Basic school as a
minority institution. Such status could be accorded by the Board of Basic
separate counter affidavit has also been filed by respondent no. 3, in which it
is mentioned that originally the institution was registered on 7.3.1969 and the
registration was renewed on 6.10.2001 and thereafter the management of the
school had been changed. Now the institution is run by a Jain family.
Respondent no. 3 also submitted that the minority status could only be granted
by the U.P. Basic Shiksha Parishad. It was also submitted that the observations
made by the Division Bench cannot be said to be binding on the Court.
appellant, in the rejoinder affidavit to the counter affidavit of respondent
nos. 1 and 2, has mentioned that the Jain community is a minority community for
the purpose of Article 30(1) of the Constitution and the minority status was
granted to the appellant as far back as on 25.8.1976 which could not be
withdrawn in a collateral proceeding in such a manner. It is mentioned that Dr.
S. N. Malhotra was the Director of Education, U.P. as well as the Chairman,
Basic Education Board, U.P. during the relevant year 1976. He had issued a
letter dated 30.5.1976 to the District Inspector of School/Regional Inspector
of Girls School for authorizing them to pass the order on the application of
various institutions submitted for granting them the status of minority
have heard the learned counsel for the parties at length. This appeal arose
from the judgment of the learned Single Judge of the Allahabad High Court dated
10.4.2003 in C.M.W.P. No. 15255 of 2003. A preliminary objection was taken by
respondent nos. 1 & 2 in the counter affidavit that under Chapter VIII Rule
5 read with Chapter IX Rule 10 of the Allahabad High Court Rules a special
appeal lies against the order of the Single Judge before a Division Bench.
Chapter VIII Rule 5 and Chapter IX Rule 10 of the Allahabad High Court Rules
read as under:
VIII Rule 5. Special appeal.- An appeal shall lie to the Court from a judgment
(not being a judgment passed in the exercise of appellate jurisdiction in
respect of a decree or order made by a Court subject to the Superintendence of
the Court and not being an order made in the exercise of revisional
jurisdiction or in the exercise of its power of Superintendence or in the
exercise of criminal jurisdiction or in the exercise of jurisdiction conferred
by Article 226 or Article 227 of the Constitution in respect of any judgment,
order or award
of a tribunal
Court or statutory arbitrator made or purported to be made in the exercise or
purported exercise of jurisdiction under any Uttar Pradesh Act or under any
Central Act, with respect to any of the matters enumerated in the State List or
the Concurrent List in the Seventh Schedule to the Constitution, or
Government or any Officer or authority, made or purported to be made in the
exercise or purported exercise of appellate or revisional jurisdiction under
any such Act of one judge." In this appeal it is not necessary for us to
decide as to whether a special appeal lay before the Division Bench of the High
Court against the impugned order of the Single Judge.
deem it appropriate to refer to some of the decided cases.
Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt reported in AIR 1954 SC 282 this Court observed that there
are well known religions in India like Buddhism and Jainism which do not
believe in God, in any Intelligent First Cause. The Court recognized that
Jainism and Buddhism are equally two distinct religions professed in India in contrast with Vedic religion.
well known Kerala Education Bill's case, 1957 reported in AIR 1958 SC 956, this
Court held that to claim the minority rights, the Community must be numerically
a minority by reference to the entire population of the State or country where
the law is applicable. In that way also, the Jain Community is eligible for the
1991 Census report, the population of the Jain community of both sects was
approximately 35 lakhs as against the total Indian population of more than 90 crores.
early as 1927 Madras High Court in Gateppa v. Eramma and others reported in AIR
1927 Madras 228 held that "Jainism as a distinct religion was flourishing
several centuries before Christ". Jainism rejects the authority of the
Vedas which form the bedrock of Hinduism and denies the efficacy of the various
ceremonies which Hindus consider essential.
in 1939 in Hirachand Gangji v. Rowji Sojpal reported in AIR 1939 Bombay 377, it
was observed that "Jainism prevailed in this country long before
Brahmanism came into existence and held that field, and it is wrong to think
that the Jains were originally Hindus and were subsequently converted into
Jainism." A Division Bench of the Bombay High Court consisting of Chief
Justice Chagla and Justice Gajendragadkar in respect of Bombay Harijan Temple
Entry Act, 1947 (C.A. 91 of 1951) held that Jains have an independent religious
entity and are different from Hindus.
Aldo Maria Patroni & Another v. E.C. Kesavan & Others reported in AIR
1965 Kerala 75, a Full Bench of the Kerala High Court opined that the word
'minority' has not been defined in the Constitution and in absence of any
special definition, it must be held that any community, religious or linguistic,
which is less than fifty per cent of the population of the State is entitled to
the fundamental right guaranteed by Article 30 of the Constitution.
Commissioner of Wealth Tax, West Bengal v. Smt.
Champa Kumari Singhi & Others reported in AIR 1968 Calcutta 74, a Division Bench of the
Calcutta High Court observed that "Jains rejected the authority of the
Vedas which forms the bedrock of Hinduism and denied the efficacy of various
ceremonies which the Hindus consider essential. It will require too much of
boldness to hold that the Jains, dissenters from Hinduism, are Hindus, even
though they disown the authority of the Vedas".
Samaj Education Trust, Delhi & Others v. The Director of
Education, Delhi Administration, Delhi & Others reported in AIR 1976 Delhi 207, it was held as follows:
only the Constitution but also the Hindu Code and the Census Reports have
recognized Jains to belong to a separate religion." In the said judgment,
the Court referred to the observations of various scholars in this behalf. The
Court quoted Heinrich Zimmer in "Philosophies of India" wherein he
stated that "Jainism denies the authority of the Vedas and the orthodox
traditions of Hinduism. Therefore, it is reckoned as a heterodox Indian
religion". The Court also quoted J. N. Farquhar in "Modern Religious
Movements in India" wherein he stated that
"Jainism has been a rival of Hinduism from the beginning". In the
said judgment, in conclusion, the Court held that "for the purpose of
Article 30(1), the Jains are a minority based on religion in the Union
Territory of Delhi".
In D.A.V. College, Jullundur v. State of Punjab AIR 1971 SC 1737, the Hindus in Punjab were held to be constituting
religious minority community within the State of Punjab because of the population ratio within the State.
In A.M. Jain College v. Government of Tamil Nadu (1993)
1 MLJ 140, the Court observed that it is also an admitted fact that the Jain
community in Madras, Tamil Nadu is a religious and
Stephen's College v. University of Delhi (1992) 1 SCC 558, this Court in para 54 at page 596
observed as under:
minorities whether based on religion or language have the right to establish
and administer educational institutions of their choice. The administration of
educational institutions of their choice under Article 30(1) means 'management
of the affairs of the institution'. This management must be free from control
so that the founder or their nominees can mould the institution as they think
fit, and in accordance with their ideas of how the interests of the community
in general and the institution in particular will be best served." Jain
religion indisputably is not a part of Hindu religion.
question as to whether the Jains are part of the Hindu religion is open to
debate. Jains have a right to establish and administer their own institution.
But, only because an institution is managed by a person belonging to a
particular religion, the same would not ipso facto make the institution run and
administered by a minority community. A minority is determinable by reference
to the demography of a State.
an institution is established and administered by a minority community or not
may have to be determined by the appropriate authority in terms of the provisions
of the statute governing the field. Furthermore, minority institutions are not
immune from the operations of the measures necessary to regulate their
functions. To what extent such regulations would operate, however, again is a
matter which would be governed by the statute.
communities do not have any higher rights than the majority. They have merely
been conferred additional protection. This has been laid down by a Eleven Judge
Bench of this Court. [See: P.A. Inamdar & Others v. State of Maharashtra & Others, (2005) 6 SCC 537].
Court in the said judgment also dealt with the object of Article 30(1) of the
Constitution. The Court in para 97 of the judgment observed the relevant para
which reads as under:
object underlying Article 30(1) is to see the desire of minorities being
fulfilled that their children should be brought up properly and efficiently and
acquire eligibility for higher university education and go out in the world
fully equipped with such intellectual attainments as will make them fit for
entering public services, educational institutions imparting higher
instructions including general secular education. Thus, the twin objects sought
to be achieved by Article 30(1) in the interest of minorities are:
to enable such
minority to conserve its religion and language, and
to give a
thorough, good, general education to children belonging to such minority. So
long as the institution retains its minority character by achieving and
continuing to achieve the abovesaid two objectives, the institution would
remain a minority institution." It is interesting to note that the
question as to whether the Jains should be treated to be a minority under
Section 2 (c) of the National Commission for Minorities Act, 1992 came up for
consideration before a Three-Judge Bench of this Court in Bal Patil &
Another v. Union of India & Others (2005) 6 SCC 690 wherein this Court
noticed that the framers of the Constitution engrafted group of Articles 25 to
30 in the Constitution of India against the background of partition of the
country so as to allay the apprehensions and fears in the minds of Muslims and
other religious communities by providing to them a special guarantee and
protection of their religious, cultural and educational rights. It was held:
so-called minority communities like Sikhs and Jains were not treated as
national minorities at the time of framing the Constitution. Sikhs and Jains,
in fact, have throughout been treated as part of the wider Hindu community
which has different sects, sub-sects, faiths, modes of worship and religious
philosophies. In various codified customary laws like the Hindu Marriage Act,
Hindu Succession Act, Hindu Adoption and Maintenance Act and other laws of the
pre- and post-Constitution periods, definition of "Hindu" included
all sects and sub-sects of Hindu religions including Sikhs and Jains."
Noticing certain concept of Hinduism vis-`-vis Jainism, it was opined:
"Hinduism" can be called a general religion and common faith of India whereas
"Jainism" is a special religion formed on the basis of quintessence of Hindu
religion. Jainism places greater emphasis on non-violence ("Ahimsa") and
compassion ("karuna"). Their only difference from Hindus is that Jains do not
believe in any creator like God but worship only the perfect human being whom
they called Tirathankar. Lord Mahavir was one in the generation of Thirthankars.
The Tirathankars are embodiments of perfect human beings who have achieved human
excellence at mental and physical levels. In a philosophical sense,
Jainism is a reformist movement amongst Hindus like Brahamsamajis, Aryasamajis
and Lingayats. The three main principles of Jainism are Ahimsa, Anekantvad and Aparigrah.
[See (1) Encyclopaedia of Religion and Ethics, Vol.7 p.465; (2) History of Jains
by A.K. Roy pp.5 to 23 and Vinoba Sahitya, Vol.7 pp.271 to 284.]" In the
instant case, the State at one point of time accepted the school in question as
having been established and administered by the Jain community which is a
minority community in the State of Uttar Pradesh. It was recognised as such by reason of a Division Bench
judgment of the High Court of Judicature at Allahabad. There was, thus, no reason for the authorities of the Respondents to
take steps in relation to the self-same institution in a different manner.
under the statute governing the field, prior approval of the District Basic
Education Officer was not necessary before terminating the services of a
teacher. As the appellant's institution was recognised as a minority
institution, in our opinion, the High Court was not correct in interfering in
the manner it did.
the impugned judgment of the Learned Single Judge is set aside.
appeal is accordingly allowed. In the facts and circumstances of this case we
direct the parties to bear their own costs.